In 2000, OSEP stated “the state complaint procedures are available for resolving any complaint…including complaints that raise systemic issues.” See OSEP Letter to Chief State School Officers, July 17, 2000 Page 4.

In 2001, OSEP stated that “…an SEA is required to resolve any complaint …including a systemic complaint alleging a public agency [LEA] has failed to provide FAPE to a group of children with disabilities.” See OSEP Letter to Nann, September 21, 2001 Page 2.

In 2008, OSEP stated that “states are responsible for resolving any complaint, including complaints containing allegations of a statewide, systemic nature…” See OSEP Letter to Jonathan Zimring, July 1, 2008 Page 1.

In the commentary to the 2004 IDEA Regulations, OSEP emphasized the broad scope of State Complaint procedures:

“We believe that the broad scope of the State complaint procedures is critical to each State’s exercise of its general supervision responsibilities. …We believe placing limits on the State complaint system…would diminish the SEA’s ability to ensure its LEAs are in compliance with Part B of the Act…and may result in an increase in the number of due process complaints filed and the number of due process hearings held.”

He also emphasizes important factors in the investigation process re on-site investigation (including OSEP requirements for SEAs), ability to submit additional information, proposal from the public agency to resolve, and mediation.

Reference: Jefferson Parish Complaint. http://www.splcenter.org

The SEA must issue a written decision that addresses each allegation, including findings of fact and conclusions, and reasons for its final decision.

The Scope of State Complaint Remedies

including:

Individual/Systemic Corrective Action Compensatory education

Monetary reimbursement

Appropriate future provision of services for all students with disabilities.

Jim covers steps to be taken to improve your chance of success when filing a state complaint. He also provides complimentary strategies to broaden your client base and support and to strengthen your complaint.

Proving Your Complaint

Do your research and include in the complaint:

statistical data

legal research and detailed discussion of previous IDEA violations

affidavits that support your your facts and claims

9:11 am Wrightslaw

Special Education: Claims and Remedies

William H. Hurd is a partner in the Richmond office of Troutman Sanders and leads the firm’s Appellate Team. He argued the case of Schaffer v. Weast, 546 U.S. 49 (2005) (allocating burden of proof at administrative hearings) as well as several key cases in the Fourth Circuit Court of Appeals.

IDEA requires the school system to provide:

“An opportunity for any party to present a complaint…with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education such child…”

IDEA provides the broad right to contest school system action. Section 1415(a)(6)(A).

establish eligibility and category

correct deficient IEP

obtain compensatory education

Mr. Hurd discusses requirements, cases, and strategies re:

placement, private placement

compensatory education

compensatory reimbursement for private services

procedural safeguards requirements and notice and exceptions

impact of evaluations

mediation, stay-put (maintenance of current educational placement)

disciplinary claims, manifestation determination, expedited hearings

access to records and student files

attorneys fees and expert witness fees

damages

Who can bring these claims? Parents or child?

Parents have their own right to enforce duties of school system under the IDEA.

During due process it is always wise to consult an attorney or well-trained non-attorney advocate.

Be creative in your claims. If it does not fit under IDEA – where will a claim fit, as in:

HH v. Moffett & Chesterfield School Bd. In HH v. Moffett, an action brought under 42 U.S.C. § 1983 (2000), a disabled child and her mother alleged, that a special education teacher and a teaching assistant maliciously kept H.H. restrained in her wheelchair for hours at a time during the school day while they ignored her, verbally abused her, and schemed to deprive her of educational services.

The 4th Circuit held that their conduct “violated H.H.’s clearly established right to freedom from undue restraint under the Fourteenth Amendment, and Appellants are therefore not entitled to qualified immunity as a matter of law.”

For non-IDEA claims – discussion of “exhaustion requirement”.

Mr. Hurd provided an extensive list of caselaw references that included in part:

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First, allow me thank all of you for your continued dialogue and efforts to ensure parents and students the full benefits of IDEA and ESEA. As a veteran SE teacher, I am frustrated with the failure of this program. I will not be returning to the classroom after this year. I will continue to work for the children in whatever way(s) I am able.